Appeal of R.F., on behalf of his children, from action of the Board of Education of the Spackenkill Union Free School District regarding residency.

Decision No. 18,476

(August 20, 2024)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Cassidy E. Allison, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Spackenkill Union Free School District (“respondent”) that his children (the “students”) are not district residents.  The appeal must be dismissed.

Petitioner first enrolled the students in respondent’s district in September 2017.  At that time, petitioner identified his address at a location within the district (the “in-district address”).

In January 2024 the district received an anonymous tip that the students resided at a home outside of the district (the “out-of-district address”).  Thereafter, between January and February 2024, the district conducted a residency investigation.  An investigator surveilled both the in-district and the out-of-district addresses between 6:30 a.m. and 8:30 a.m. on 11 weekdays.  On each day, the investigator witnessed the students leave the out-of-district address with petitioner or petitioner’s spouse and drive to the students’ schools.

In a letter dated February 22, 2024, respondent’s residency officer informed petitioner that the district had received and reviewed information indicating that the students did not reside within the district.  Petitioner thereafter submitted numerous documents purporting to establish the students’ residence at the in-district address.  Petitioner also spoke with the residency officer on at least two occasions in February 2024, asserting that the students had slept at the in-district address every night for the past several years.  Petitioner also asserted that the students took the school bus from the in-district address every morning.

By letter dated March 4, 2024, respondent informed petitioner of its determination that the students were not district residents and, therefore, would be excluded from respondent’s schools effective March 22, 2024.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 18, 2024.

Petitioner contends that the students reside with him at the in-district address.  He seeks a determination that the students are residents of respondent’s district.  Respondent, relying primarily upon its surveillance evidence, contends that the students reside at the out-of-district address.

First, I must address the scope of the record.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Likewise, additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5).  While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Petitioner submitted additional exhibits in connection with his response to respondent’s stay opposition and in a memorandum of law, both of which were filed without prior permission.  Accordingly, I decline to consider these exhibits.

Turning to the merits, Education Law § 3202 (1) provides, in pertinent part, that “[a] person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.”  The purpose of this provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

Petitioner has not met his burden of proving that the students reside within respondent’s district.  Petitioner submits a myriad of documents including bank statements, tax documents, voter and department of motor vehicles registrations, utility bills, and health insurance information which bear petitioner’s name and the in-district address.  These documents generally establish petitioner’s ownership of the in-district address, which respondent does not dispute.

Petitioner also submits affidavits from neighbors at the in-district address, parents of the students’ friends, and the basement tenant at the in-district address.  Each affiant attests that the students reside at the in-district address where they “take the bus every single day.” 

While entitled to some weight, these affidavits are unpersuasive when weighed against respondent’s surveillance evidence (see Appeal of M.S., 63 Ed Dept Rep, Decision No. 18,411; Appeal of Mauro, 58 id., Decision No. 17,494).  As indicated above, respondents’ investigator witnessed the students exiting the out-of-district address with petitioner and/or petitioner’s spouse on all 11 mornings that the district conducted surveillance.  The investigator did not observe any lights on at the in-district address or vehicles belonging to petitioner or petitioner’s spouse in the driveway.  This is consistent with affidavits from the students’ bus drivers, who indicate that the students did not ride the bus on school day mornings unless there was a two-hour delay; that the students regularly referred to the in-district address as belonging to their grandmother; and that the students only began taking the bus in the morning on or about March 15, 2024—shortly after respondent revealed the results of its surveillance evidence to petitioner.  In light of the foregoing, I find that petitioner has not met his burden to establish that the students reside at the in-district address.

THE APPEAL IS DISMISSED.

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